Van Winkle agt. Steamboat Henry Morrison.

pose. Here, however, no third person intervenes to claim the protection of the law. It is not, however, necessary to decide the case upon this point.

It might be claimed that here was a running account, and that some of the articles were furnished after the boat went to Newark. But neither is it necessary to decide the case upon this point. I have looked at the case to see if the vessel did leave the state within the meaning of the law. It is not every leaving of the state which will be effectual to destroy a lien-as if she only left it on a trial trip, or if while lying at the dock she be secretly taken out of the state, the lien will still subsist. Under what circumstances, then, did this vessel leave? She was nearly completed, and her owner was expecting to employ her in the harbor of New York, and, taking her for this purpose, he secretly, and without the knowledge of the libellant, ran her over to Newark, and now sets up that leaving the state as a defence. It certainly is a most inequitable one, and if the rules of law were such that it could be sufficient, every one would admit that they ought to be altered. There is no third party in the case; it is the owner himself who induced the libellant to do the work for him, has got the supplies and got the vessel, and in one single instance, unknown to the libellant, has taken her to Newark. He took her for the purpose of running in this harbor—the libellant not dreaming that he was going to do anything else-ran her over to Newark, brought her back and got more work done on her, not amounting to $50, and now sets up as a defence, to the first part of the claim, that the vessel has left the state; and to the last part, that it is not of amount enough to bring it within the statute.

I think that under the circumstances, her going out of the state does not come within the reason of the statute. It was a private going out of the state, not in her ordinary business, and I do not think that the libellant is deprived

Elmore agt. Steamboat Alida.

of his lien by it any more than if her owner had taken her while lying at the dock uncompleted, and gone over to Newark with her. And I should hesitate long before I allowed such a defence to defeat such a claim. Decree for libellant with a reference.

UNITED STATES DISTRICT COURT.

JAMES H. ELMORE agt. THE STEAMBOAT ALIDA, her tackle, &c.

The act of March 29, 1855, laws 78 session, chap. 10, p. 174, is a re-enactment with amendments of the act of 1830. (2 R. S., 493, 494, §§ 1 and 2, O. P.)

The construction and effect of the amended act, in respect to the lien, is the same as that of the original act.

All credits which have run more than ten days subsequent to the return of the vessel to the port where the debt was contracted, are excluded from a privilege against the vessel when the notice of lien is not filed within that period. Each credit for supplies is separately the debt contracted, and to that the limitation applies.

The filing of the lien is the only means of giving life to the lien, and previous to such filing the privilege is merely inchoate and permissive. A claimant in admiralty may take advantage of the non-existence of the lien without expressly pleading it.

A mortgagee in possession is a competent party to intervene and contest the validity of the libellant's lien.

In Admiralty, southern district of New York.
Before Hon. S. R. BETTS, D. J.

THE facts of the case sufficiently appear in the opinion. The intervention in the case was by a receiver appointed by the superior court, in an action brought by a mortgagee in possession, claiming to foreclose his mortgage, and to adjust and exclude the equities and claims of other mortgagees and claimants to the boat. The boat had been sold and the proceeds paid into the registry of the court, with the understanding that the same effect should be given to the proceeds as if they were the rem in the hands of the marshal.

Elmore agt. Steamboat Alida.

D. MCMAHON, for libellant.

Mr. BONNEY and Mr. SHERWOOD, for the claimant.

Per curiam, BETTS, D. J. The action is by a provision. dealer, or ship chandler, for a bill of supplies furnished the steamer. The purchases were made September 3, 4, 8, 11, 13, 14, 17 and 19. No term of credit was stipulated, but the usual practice between the parties was to pay these bills monthly.

2. The boat was a domestic passenger vessel running up and down the Hudson river daily, except Sunday, between New York and Kingston.

3. The libellant, on the 22d of September, filed his specification of lien, charging purchases by the boat at the dates above mentioned, and setting forth the prices and amounts, and on the 29th filed his libel in this cause to recover the entire amount.

4. On the hearing he claims a right to recover the whole sum of the bill of items, and the claimants deny his lien at most for any purchases anterior to the 12th of September.

5. The libellant objects to the admissibility of the latter point of defence, because not formally pleaded.

1. I hold the existing lien law (acts of March 29, 1855; laws 78 session, chap. 10, p. 174) is a re-enactment with amendments of the Revised Statutes. (2 R. S., 493, 494, §§ 1 and 2.)

2. The lien created by the act is fully determined and gone in all cases after sixty days after the vessel subject to it, returns to the port where the debt was contracted; but in reality that prospective or permissive continuance of the lien is in this case fruitless, and never comes into action, because the debt being subsisting when the boat left port, is strictly declared by the statute to cease immediately thereupon unless lien specifications are filed within ten days after such departure.

3. The filing of the lien specifications is thus made the

Elmore agt. Steamboat Alida.

operative and only means of giving life to the lien; previous to that act of the creditor, the privilege is merely inchoate and permissive. The chronological order of the provisions is inverted in language, but the conditions of filing the specifications is made the first affirmative act of the creditor, and the one vital to the prosecution of the lien.

4. The construction and effect of the amended act, in respect to the lien, (6 Hill, 496,) is the same as that of the original act. All credits which have run more than ten days subsequent to the return of the vessel to the port where the debt was contracted, are excluded from a privilege against the vessel when the lien specification is not filed within that period. This provision is the exact equivalent in effect of the original statute.

5. Accordingly, each credit for supplies is separately the debt contracted, and to that the limitation of time is applied by this court and the state courts. (3 Comst., p. 438; Veltman agt. Thompson, 6 Hill, 494-6.) A mortgagee in possession is a competent party to intervene and contest the validity of the libellant's lien.

7. The restriction of the sixty days to the duration of the lien has no relation to this case. The action was brought within thirty days after the first credit, but no recovery could be had thereon for any charges which had stood over ten days.

It is agreed between the parties that this order will embrace the sum of $161.29, and it is therefore directed that a decree be entered for that sum with costs.

Earle agt. Steamboat Alida.

UNITED STATES DISTRICT COURT.

JUSTUS E. EARLE agt. THE STEAMBOAT ALIDA.

The lien act relative to ships and vessels (2 R. S., 405, §§ 1 and 2,) embraces wharfage under whatever title it is used, unless the vessel is placed there in wrong of the owner. She is in pawn to the wharfinger for the wharfage, and the statute preserves the effect of the pledge for ten days after her removal, until a lien is filed. But wharfage can only be collected under the statute for the period the vessel actually occupied the wharf. It must be allowed as if the case was without bargain as to terms and duration. But the parties may agree as to the rate of whafage to be charged, and their agreement will be so far upheld.

It is not necessary that the claimants should plead in bar of the lien. The onus is on the libellant to make out in the first instance the facts constituting it.

In Admiralty, Southern District of New York.

Before Hon. S. R. BETTS, D. J.

THE libellant was the owner of a wharf at the foot of Robinson street in the city of New York. As such he let to the owner of the steamboat Alida a privilege of the boat's stopping at that wharf for one year, at a certain rent, payable quarterly on the usual quarter days in such cases.

The libellant, before the second quarter was concluded, filed his specification of lien, and in his libel claimed for the whole of the second quarter due at the time of the filing of the lien, although it had not expired. It was insisted that the wharf being let by the year no lien existed. The claim was put in by a mortgagee claiming to be in possession, also by a receiver appointed by the superior court in an action brought by another mortgagee, claiming to be in possession, to foreclose his mortgage, and to adjust and exclude the equities and claims of other mortgagees and claimants to the boat. The boat had been sold and the proceeds paid into the registry of the district court, with the understanding that the same effect should be given to the proceeds as if they were the rem in the custody of the marshal. The claimants had omitted to plead in their answer, the facts showing there was no lien.